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State v Manuel (No. 3) [2016] PGNC 104; N6291 (10 May 2016)

N6291

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1207 OF 2014

THE STATE

V

MONDE MANUEL (N0.3)

Kokopo: Lenalia, J
2016: 8^th, 9^th, 10^th, 16^th, 22^nd, 23^rd March,20^th & 22nd April, 3^rd&10^thMay

CRIMINAL LAW – Willful murder– Sentence after a finding of guilty – Criminal Code s.299 of the Criminal Code.

CRIMINAL LAW – Willful murder – One of those worst type cases– Sentencing principles – Deterrent penalty called for due to seriousness of the crime involving a 3 year old victim.

Cases cited.

Goli Golu v The State [1979] PNGLR, 653
Kesino Apo v The State [1988] PNGLR 188
Manu Kovi v The State (31.5.2005) SC 789
State v AruaMaraga Hariki (2003) N2332
State v Genesis Mai, James Mai and Steven Mai (15.8.2014) Cr. Nos. 939-941
State-v-Gregory Kiapkot& 4 Others (2012) N4381
State v MalariToliu (No.3) (9.9.2014) Cr.No.417 of 2011
Steven Loke Ume &Ors v The State (2006) SC836
The State-v-Ben Simakot Simbu (N0.2) (2004) N2548
The State v Peter Gilgil Angara, (8.9.2009) Cr.No.1680 of 2006
The State v Robert TouranPaivu (No.2) (8.10.2014) Cr. No. 180 of 2014
The State v Selmon Amos &Misialis Amos (2012) Cr.No.697 of 2011
The State v Wilson Okore, (6.2.2009) CR No.584 of 2006
Ure Ane v The State [1984] PNGLR 105

Counsel:
Mr. L. Rangan, for State
Mr. P. Kaluwin, for the Accused

10^th May, 2016

1. LENALIA, J: On 22^nd March this year, this court found the accused guilty on one count of willful murder under s. 299 of the Criminal Code. The death of the three year old boy, Noel Maras occurred on 13^th May 2014. He was of mixed parentage, the mother from Buka Island Autonomous Region of Bougainville and the father from Rababat village Reimber/Livuan LLG East New Britain Province.

2. The evidence upon which the prisoner was found guilty found that the victim and his elder sister went to the plantation to collect Malayan fruits in our terms laulau fruits and while they were under the laulau tree, the prisoner and the eye witness of this case Papanga Tande returned from giving some money to another person at Rababat village. As they were walking back, they saw the victim and her sister collecting fruits.

3. The prisoner asked the victim for some fruits. He walked towards the little boy and held on him on his head and the little boy made some uneasy noises. When Papanga Tande looked back, he saw the prisoner twisted the victim’s head and neck. When the prisoner saw the key witness, he walked toward him and warned him that, he must not tell anyone about what he did to the deceased.

4. Doctor Lisioth Wauleau of Nonga General Hospital was called. He confirmed that, under his supervision, the body of the deceased was exhumed some six weeks after it was buried. He gave evidence of the finding he did. Various questions were asked in chief and cross-examination about his findings. He said, according to what he recorded, he found on the neck of the decease a mal-alignment of the cervical spine fracture.

5. The court also found that the prisoner admitted in the record of interview that he twisted the neck of the victim which caused his death.

Addresses on Sentence

6. On his allocutus, the prisoner said, he did not have anything to say and he would live it up to his lawyer to address the court on the penalty.

7. Mr. Kaluwin submitted that the maximum penalty for this crime is death and whatever penalty is considered should not be severe. Counsel asked the court to consider the previous good character of the prisoner. His view is that, this was not one of the vicious cases of killing.

8. Mr. Rangan, counsel representing the State objected to the above submission and said, the killing of the innocent 3 year old kid was so vicious and brutal that the prisoner’s case should fall between category 2 and 3 on the tariff of sentences suggested in Manu Kovi v The State (31.5.2005) SC 789. Counsel argued that, the killing of the young victim was brutal done without considering the welfare of the victim.

9. He asked the court to consider the victim did not have anything against the prisoner. He referred to the case of UreAne v The State [1984] PNGLR 105 where the Supreme Court listed considerations and factors to be considered where killings are considered as brutal, horrific killings of innocent or harmless persons as the killing of the child on the instant case.

Application of Law

10. The principle of sentencing in willful murder cases set by the Supreme Court case of Manu Kovi v The State (2005) SC 789 is that, the maximum penalty ought to be reserved for the most serious offences under consideration. What that means is that, the maximum penalty should only be imposed in those cases where they are regarded and categorized as the “worse type case” that is under consideration: Goli Golu v The State [1979] PNGLR, 653 and Ure Hane v The State [1984] PNGLR 105).

11. The prisoner you must understand that, for the crime you committed against that little boy, who was barely 3 years, you can be sentenced to death. However, the maximum penalty is not automatic. A sentencing Judge exercises his or her sentencing discretion under s.19 of the Criminal Code. Such principle has been referred to in many cases. (See Steven Loke Ume &Ors v The State (2006) SC836 to sentence an offender to a term of years.

12. By authority of the above cases, I consider circumstances under which this crime was committed. I must also consider whether the injuries caused were caused by the prisoner being bare handed or did he use a weapon.

13. By authority of cases such as Manu Kovi v The State (2005) SC 789 and earlier cases such as Steven Loke Ume &Ors v The State (2006) SC836, the court on the instant case must consider factors such as the nature of the attack the offender inflicted upon the victim. The court considers the fact that, unlike in other willful murder cases, the victim of the present case was a harmless baby boy. He did not deserve to die the manner you caused his death. You did not use any offensive weapons against the boy. He was unarmed. You showed no mercy to him.

14. In Manu Kovi v The State (supra) the Supreme Court reviewed the guidelines set out in previous cases and set some guidelines to guide Judges on sentencing offenders for the crime of willful murder and other homicide cases. That case establishes that where a crime of willful murder is classified as a ‘worst type’ case the death penalty can be imposed. As alluded to earlier, the death penalty is not automatic. Like on the instant case, this court must consider all mitigating circumstances and weigh such factors against all aggravating circumstances and decide whether the maximum penalty should be imposed or not: Steven Loke Ume &Ors v The State (supra).According to the above case, a sentencing Judge may exercise its sentencing discretion under s.19 of the Criminal Code unless where the law expressly provides otherwise.

15. The death penalty is imposed where it is appropriate to impose according to the facts and circumstances of each case. Where an offender has been through a trial as envisaged by the right to trial and found guilty of willful murder it does not mean it may attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, amongst others, aggravations and extenuating circumstances.

16. In our time, there is widespread concern about the prevalence of unlawful killing like willful murder, murder and manslaughter case committed against fellow citizens. In a number of Supreme Court willful murder cases where appellants had appealed against conviction and sentences, the Court had been critical over the length of terms of imprisonment that have been imposed in murder or willful murder cases. The Court there said, sentences imposed on murder cases have been too lenient.

17. In a number of serious killings, the National Court has imposed the death penalty. Those case include, State v Arua MaragaHariki (2003) N2332, Salika, J; (as he then was) imposed the death penalty on the offender who killed two young men with whom he had been drinking with during the night the offences were committed. The prisoner strangled the two deceased by their necks. The court found by circumstantial evidence that he had also killed the other deceased as well because the evidence pointed to such conclusion. In The State-v-Ben Simakot Simbu (N0.2) (2004) N2548, Kandakasi,J sentenced the accused to death for a double murder of a mother and her young child. The offences took place on 19 July 2002 in Vanimo, Sandaun Province.

18. In this Province, in State-v-Gregory Kiapkot & 4 Others (2012) N4381 a multiple willful murder cases of eight (8) victims who were killed on the sea between Duke of York Islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province. In a case before this Court, in The State v Selmon Amos &Misialis Amos (2012) Cr.No.697 of 2011 unnumbered judgment it was a killing of three separate victims at end of Tokua airport, Kokopo. The two accused were found guilty of the crime of willful murder because, they collaborated with each other to kill the victims following grudges over a plantation on the West Coast of Namatanai. They were charged under s.299 of the Criminal Code. The two were sentenced to death.

19. In other willful murder case, either life or long terms of imprisonment have been imposed. Examples of such cases are in The State v Wilson Okore, (6.2.2009) CR No.584 of 2006, unreported & unnumbered judgment the same Judge imposed a term of 50 years for the offence of willful murder. It was a case in Lae where the offender pleaded guilty to the murder of the deceased who was suspected of practicing evil sorcery upon his aunt which caused her to suffer drowsiness and severe headaches.

20. In The State v Peter Gilgil Angara, (8.9.2009) Cr.No.1680 of 2006, Unreported & Unnumbered Judgment, the trial Judge sentenced the offender to life imprisonment. The case went by trial, the prisoner was found guilty and convicted of the willful murder of an innocent young man. The victim of that case was abducted by the prisoner and his accomplices allegedly in retaliation for the death of a young man and cut with bush knives and axes all over his head, face and stabbed several times on his chest until he bled to death. The court found the case to be a worse case of willful murder. It described the killing as “heinous, senseless, brutal, barbaric and cold blooded”. The offender was sentenced to life imprisonment.

21. In State v Genesis Mai, James Mai and Steven Mai (15.8.2014) Cr. Nos. 939-941, the three accused killed the deceased at the log pond at Open Bay Timbers yard on suspicion that, the deceased killed their wantok. They came to the beach and found the victim and his wife. They started to accuse him of killing their friend. They chased him and cut up his body. He was assisted on to a boat to go to the nearby health centre. They continued to cut his body until he fell to the sea. He got to the hospital and they followed him. He died in the health centre. This court sentenced them to 50 years imprisonment.

22. Another case in this Province, in State v Malari Toliu (No.3) (9.9.2014) Cr.No.417 of 2011, the offender was charged with willful murder of his own wife. That was his second conviction for the willful murder of his first wife. The court found it was a merciless killing of his late wife. Instead of imposition of the death penalty, this court considered that he lost a loved one in terms of the principles in Kesino Apo v The State [1988] PNGLR 188 which says that the loss of a loved one is self-inflicted on an offender. In Malari’s case, the court considered that principle and sentenced him to life imprisonment because that was the second case of willful murder of his first wife.

23. In another willful murder case of The State v Robert Touran Paivu (No.2) (8.102014) Cr. No. 180 of 2014, it was a case of willful murder where the offender murdered his brother in law. An argument developed between the mother of the woman who was living with the accused for over 4 months in an incestuous affair. The victim walked up to the house and kicked the door open. The accused came out with a long bush knife and cut the victim leaving very serious wounds which caused the death of the victim. He was sentenced to 40 years.

24. You must understand that the young man that you took his life away prematurely has lost his life now forever. Once again this case involved the loss of the life of a young child and that child was only a three year old boy who did not have grudges against you. The prescribed penalty demonstrates the stern view taken by the parliament in fixing the death penalty at death because once life is lost, it is gone forever. The courts have often repeated the warning that taking a life away from another person, must be met with imposition of heavy penalties to meet the gravity and seriousness with which homicide crimes are committed. In consideration of appropriate sentences for an offender, Judges of this Court must take into account the level of violent crimes committed in all communities in Papua New Guinea.

25. Crimes of violence are now very prevalent and as such deterrent sentences are called for. All communities in this country are experiencing a high level of violent crimes affecting our country’s quest for progress in terms of solving disputes in amicable manner as provided for by law. You used your bare hands against that little boy as though he was a toy. Hopeless boy, he did nothing to harm you. He was a baby, harmless as he was, you did not have any respect for him and if you had any grudges with his mother, father or any other relatives, why put the blame on the little innocent one.

26. If there were problem with the deceased’s line, you should have brought such dispute with the Village Court Magistrates, Ward Councilors, village committees or church workers or even the police to solve such problems. This court classifies your case as the worst type case. This is due to the fact that, the life of an innocent one has been lost for good. The law provides for the peaceful resolution of disputes. You did not give any reasons why you viciously attack the young lad. You admitted in the record of interview that you twisted the victim’s head which lead to his death several days later.

27. In the case of Steven Loke Ume &Ors v The State (2006) SC836 the Supreme Court comprising of late Sir Mari Kapi CJ, Injia, DCJ (as he then was), late Justices Los, late Hinchliffe, J and Davani J, set out eight (8) considerations where the maximum penalty can be imposed on willful murder cases. In the above case the Supreme Court, without being exhaustive, suggested that the death penalty may be imposed in the following types of cases:

➢ The killing of a child, a young or old person, or a person under some

disability needing protection.

➢ The killing of a person in authority or responsibility in the community

providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

➢ Killing of a leader in government or the community, for political reasons.
➢ Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.
➢ Killing for hire.
➢ Killing of two or more persons in the single act or series of acts.
➢ Offence is committed by a prisoner in detention or custody serving

sentence for another serious offence of violence.

➢ The prisoner has prior conviction(s) for murder offences.”

(Emphasis added.)

28. The prisoners’ case falls into category 1 in the suggested considerations on the above case because the victim you killed was just a child aged 3. The Court has a considerable discretion whether or not to impose the maximum penalty when reading s.229 (2) in conjunction with s.19 (1) (aa) of the Criminal Code.

29. In any event, anyone comes before the Court for a crime of willful murder done or committed under any circumstances, he or she faces the death penalty because s.299 (2) of the Criminal Code prescribes the death penalty. The Supreme Court comprising of late retired Judges Justice Los and Justice Sevua and the current serving Judge, Justice Kandakasi, dismissed the appeal against life imprisonment in Tony Imunu Api-v-The State (supra) where the Court in the above case expressed concern that because the case involved a bizarre killing and the death penalty should have been imposed. The expressed an orbiter dictum over the consideration that could have been given when the National Court sentenced the appellant. The Court there said:

“We are of the opinion that this was a worst type of willful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view.

We therefore hold the view that the prisoner should have been sentenced to death. ... we consider that the National Court should in appropriate circumstances, consider that Parliament had amended s.299 of the Criminal Code for a purpose. In the light of the prevalent commission of willful murder in the country, some of which can be categorized as very serious cases of unlawful killings, the National Court must not ignore the concerns of the community at large. We think the time has come for the National Court to seriously consider paying some attention to serious willful murder cases, and where appropriate, impose the death penalty. We say this without in anyway trying to usurp the power and independence of trial Judges in the National Court”.

30. I adopt the above sentiments and say that, the killing on the instant case was a blatant and complete disregard for the sanctity of life of the late Noel Maras. The parents of the victim went through a hard time in trying to assist the victim recover his health. They took him two times to Livuan Health Centre and he was check for malaria. The finding was negative. The HEO put drip on him but it could not work. The victim cried all through the night pointing to his neck saying in kuanua language, “manu, manu”. In the Tolai language, that is Kuanua, it means sore, sore.

31. The process was repeated from the date they went to the Health Centre until his condition deteriorated and he was taken to the emergency children’s ward at Nonga General Hospital. The victim passed away on 15^th May 2014 on that same date at 6pm.

32. The life of the victim in this case has now been lost for good. He was entitled to the protection of the law envisaged by s.35 of the Constitution. Neither wealth nor anything of this world paid in by way of compensation or even any remorse would assist to restore, revive or resurrect a life that has been lost. Once it is lost, it is lost forever. That is why the parliament thought that the penalty for the crime of willful murder should be death.

33. The court considers the fact that, life is very precious. Due to that, s. 35 of the Constitution guarantees life and says that, no person can be deprived of his or her life intentionally except in a case where a person is executed following a sentence by the Court of a case for which the maximum penalty is death or in a case where a person dies as the result of use of reasonable force and that provision sets out other exceptional circumstances where force is applied and as the result a person dies.

34. Having considered all mitigations and aggravating circumstances of this case and the sentencing tariff set by the Supreme Court in Manu Kovi-v-The State (supra), your case would fall into the first category in the above case. Considering counsels’ submissions on sentence, I consider that this case does not warrant imposition of the death penalty. Instead, a long term of imprisonment should be given.

35. The court would describe what you did to the deceased as “senseless, cold-blooded, barbaric and brutal.” You revealed what you did to the victim in the record of interview where you admitted to killing the little boy by twisting his head and neck. What did that little victim do to you? Your action deserves the maximum or near maximum penalty to be imposed. The prisoner is sentence to 50 years imprisonment. The time spent in custody be deducted.

____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.